Legal Skills and Offenses against the Person - Essay Example

Insert full names Instructor’s name Insert Course name 21st April 2012 INTRODUCTION On liberty it is important to assert that Mill in his writings wanted to ensure that an individual’s liberty as regards, his conduct in society is greatly maximized. “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. ... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns him, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” (J. S Mill). This quote essentilly provides that the only time that a person can interfere with the freedom of a person is only for reasons of self protection. It has been a commonly accepted principle as developed by Mill that the harm principle is set to contradict the statement that since people are born free they can go ahead to do acts that harm other individual. The development of the criminal justice system over the years has focused on how to prohibit crimes that invade on other people and also to develop a penal system to ensure that the crimes are punished. The main aim for punishing people who harm others is to ensure that justice is done, there is retribution and also a sense of an existenec of rule of law to ensure that others are also deterred from engaging in such actions (Gary 34). Mill asserts that in considering harm, a soverign person cannot be said to be immune, he asserts that there ought to be a system or rule of law that focuses on the soveriegns behaviour. Actions however how harmless they are , can at times be considered immoral, because no matter how self –regarding it is it can still harm one person and hence it is considered wrong (Israel & Sarre 44). The Harm Principle The idea is that a person can do anything he wishes as long as the said actions do not cause harm to another person. It gives authority to an individual over the society and modifies the freedom of doing whatever one feels like. It can be inferred from this that there would be no neccessity of the government enacting laws , policing people and punishing them because every person would be a judge of his own behaviour and character. The harm principle can be spilit into two; that is as long as the actions concersns his interests then he cannot be accountable to the society. Secondly, that if actions done by the individual are prejudicial to other people’s then the individual should be held accountable. This second tier hence gives the society a chance to subject him to social or legal punishment in order to protect themselves(Lamont 6). In this instancecriminal law comes to the aid of those affected by the crimes of the individual by creating acts and legistlations to give acts that would be considered affecting other people.Harm principle can only interfere with an individuals soverignity if the acts would fall under the following heads; Partenalism: Where the law is instituted to protect a child or persons of litile knowledge, then the concept of individual soverignity would be rejected, Children need to be protected from vices that would harm their moral upbringing and therefore acts that would bring harm against them need to be curtailed. Moralism: it is concept adopted to prevent certain behaviour that even though they are wrong but in moral aspects they are not. In instances drug abuse is not morally wrong but it is wrong if it is used to harm others or the intention of using it is to cause harm to one self. Repugnance: this is an aspect that criminal law needs to deal away with offenceive behaviour such as prostitution and solicitation. This is because it is considered to be repugnant to morality of the society (Williams 80). CRIMES AND OFFENECES A crime can be difined as an act, ommission , state of affairs, which would contravene the law and which may be followed by prosecution in criminal proceedings with an attendant consequence following conviction, of punishment. (Ashworth 1) It can be stated that a crime would be considered a failure to abide by the law and that for a crime to exist criminal law must exist, and when rules that proscribe behaviour do not exist then criminal activity cannot exist. It is essential to note that acts or omissions that have a detrimental impact on the general public should be prohibited as regards public acts it means that the activities of the individual are going to have an effect on at least one person or a group of person and if it leads to a person getting hurt then criminal law should prohibit it. Crimes under criminal law are usually categorized into two groups that is; those expressly provided by statute (statutory crimes) and those that are provided for under common law. Crimes that are statutory are expressly provided for under the legislation of a country while common law crimes are those that have evolved through the common law regime. Offences against the Person Offences against the person can be grouped into two that is; those that affect only the individual and those that are done to affect a third person.I would positively state that one would consider this kind of offence that do not necessarily cause harm to any third party or any other person but the law has ruled it to be illegal. Essentially the crime not at the least pause any violation of a third party’s rights. These offences would include prostitution, gambling, and illicit drug abuse. This acts as per the provision of the criminal law consists of a person agreeing with others to commit the criminal offence and does not involve any other person. In considering the definition of Mill as regards moral acts, if it does not constitute an act that affects the general public, then the law cannot prohibit such behaviour. These crimes tend to state that, the individual is his own sovereign and that he cannot be punished for these offences and excludes the community. Suicide for instance is considered an offence, but in its consideration it does not cause harm to a third part but the individual person. Crimes such as driving auto insurance that consist the crime of an individual but it extends to abstract group of people, without a clear direct crime. At times offences against the person cannot be directed to a particular recipient or victim but only the effects of the crime are to be considered. Consent is usually a determinant in determining whether an act was done with the consent of the individual. In cases of euthanasia, a court on a charge of involuntary manslaughter would consider the fact that a doctor stated that the patient really needed the procedure and that a person of authority had authorized it. Generally offences against the person would include murder, involuntary manslaughter, and battery, assault, causing grievous harm to a person and even threatening the person. In determining this offences the intention of the parties and the acts need to be proved before a verdict of guilty is passed. Offences against the Public Offences of violence are prohibited because they cause harm to others, because it demonstrates a lapse in the physical integrity of a person as regards how the society is viewed. In instances of riots even though it would be because of a good reason, however where it extends to acts of looting and vandalism, it would be considered a criminal act. In widening the scope of these offences it would include offences against state security, crime of breach of trust and offences that relate to public obligations such as paying of taxes. An offence against the environment and also the conditions of life of society is also necessary in considering offences of the public. Pollution, nuisance and purity standards are all offences that relate to violating the proper living standards of person in the community. Criminal law does no aim to curtail the rights of a person as regards their activities in participation in democratic processes but in so far as the sovereign is concerned, the acts should not affect an individual who is not involved in it. Offences against public morals The issue that faces criminal law is whether it can be used to govern private morality in cases of homosexuality. Morality is considered to be that which offends the community spirit (Baird and Koffman). This means that acts of privacy can be curtailed by a proper formulation of the law. Packer argues that morality should inform criminal law because in considering the essence of criminal sanction, it is one that involves moral condemnation and hence only conduct that is immoral should be deemed to be criminal In this instance the crimes that are prohibited would include advertising and openly soliciting immoral activity. In the case of Crook v. Edmondson [1966] 2QB 81 where a male kerb-crawler was found not to have committed the offence of soliciting because it only involves prostitutes in the streets. R v Morris-Lowe [1985] 1 All ER 400 it was held that a man who attempted to dupe would-be masseuses into masturbating him was not guilty of the offence of attempting to procure a woman to become a common prostitute, since his action was intended to be a ‘one-off’ and not therefore intended to propel a woman into a career as a prostitute. The two cases demonstrate that the judicial moralism in trying to decide what immoral conduct is tempted to decide between two of greater evils and hence uncertainty as regards moral crimes lies unstably in their hands. It is important to note that criminal legistlation should be enacted in a way that they reflect current moral considerations of the society. In considering who gets harmed in offences involving sexual morality one would state that the women in cases of rape, the prostitutes and men in cases of acts against them. In the case of Shaw v. DPP [1962] A.C. 220, Lord Reid removed from the court the offence of conspiracy to corrupt public morals where the defendant had published a magazine showing people who provide services. It can be demonstrated from this case that morality is desired in reaching a conclusive decision but it cannot be made an offence in totality. The offence having been defined on the basis of morality, one would argue as to whose morality they advocating as are considered by Bentham. (Williams 66). It can be inferred that morality would depend on the general societal view, but an individual’s perspective also needs to be taken into account. The scope of offences that would damage the public morals of society include; public expression of racist, sexist ideas, public nudity. Weakening the social fabric is an important factor in considering whether the offence would tend to influence public behaviour in a particular manner. Solicitation of persons for sex would probably influence the younger children to adopt the behaviour because the adults would be considered better placed in identifying what is the best behaviour to be prescribed for a child. Offences against property Counterfeiting, credit card fraud, money laundering, people-trafficking, computer hacking, environmental protection would all be considered as offences directed at property. According to Mill’s on liberty, he asserts that the harm should extend to a third person and in this instance; the economic status of a person is damaged when his property is damaged. Offences such as theft and those that involve property are contrary to the social value of security given to property. Arson, blackmailing, extortion, false pretenses, robbery and possession of stolen property all add up to the scope of offences that include offences against property. These kinds of offences affect the other person or society because it interferes with their day to day lives with how they deal with their property. Moreover, economic benefits derived from the property are not only for the benefit of one individual but the whole community. Crimes against justice The sovereign as asserted by Mill, is not to be taken in totality to mean the individual as a person, but the state should also be considered a sovereign in trying to guard against unconscionable conduct of an individual. The state provide laws that ensures that a person does not act contrary to it, but at some instances, the state can fail to look at certain acts and do injustice to the individual. Misprision, perjury, malfeasance, and perverting the course of justice would be considered as crimes against justice. Criminal liability In trying to ascertain whether an individual is liable, there are certain aspects of fault that need to be considered, because certain crimes do not require any minimal fault or no personal fault. It can be stated that offences can be one of strict liability and those that require intention (mens rea) to be manifest. Strict liability offences such as road traffic offences are aimed at an individual and hence one need not prove any element of a crime. This also includes driving beyond the required speed limit, driving while drunk and even bribery. The offences under common law that require mens rea to be proved and this is basically insisted upon by the court in wanting to know whether the individual being charged was fully aware of the nature of the crime, he was undertaking. These offences however, an individual can be allowed to give defences such as self defence in murder, insanity or duress. In these instances the liability of a criminal as regards the offence committed would be determined by the scope of liability, conditions of liability and the range of offences. Punishment In order for a criminal justice system to function effectively, is to ensure that a proper penal system is established to enable violators to be held accountable and liable for their acts and omissions. Maximum penalties and minimum penalties are usually provided according to the seriousness of the offence that has occurred. In determining the punishment for a crime, one need to first consider whether the act was serious enough to be made a criminal offence and if positively proved, then how serious is the crime compared to other crimes. Lord Lane CJ stated that for instance in determining the seriousness of fraud, one needs to remember that there are nonviolent, nonsexual and nonfrightening crimes (Wolff 99 ). However many scholars state that in punishing crimes, one must not only weigh between two crimes but must also consider the interests reflected by the society in general. Culpability is usually the measure of remoteness of the omission of an act, for instance a negligent doctor, needs to prove that the acts he had done did not lead to the death of the person Culpability. It is important to consider the fact that the criminal system adopts a system that the prosecution ought to prove that an act was committed and that there was an intention on the part of the perpetrator to do these crimes. CONCLUSION The concept of morality in tending to define behaviour as criminal is essential in society; this is because leaving an individual to determine the scope of his actions without any limitations would lead to a segregated conduct. It has been accepted that at times immoral character does not usually lead to crimes for instance in cases where the act only limits itself to that of the particular individual and not any other person. Mill’s harm principle in essence constructs the two limbs of acts that are considered to be criminal in nature; the acts of an individual that are illegal but do not affect others but himself alone and acts of an individual that affects the whole society. An individual defining his own limits would be a bar to the control of a person’s conduct. Morality tends to define how people act as regards their interactions with other people that live in it. Offences against the person, property, public and those that evoke public moral are all created to limit the freedoms of an individual. Making them into a bill or legislation ensures that the individual identifies the law as a supreme being to guide his behaviour as regards the provision of the act or law. Acts that are considered to be ultra vires or contrary to that which the law provides would lead to an individual being punished. The very existence of punishment as the ultimate consequence would be a deterrent to persons who commit atrocious acts that affect other individuals. Offences that are recognized require that an individual who is involved in such crimes has to answer for them in a court of law. The main reason why the courts allow for criminal liability to be ascertained is to know whether the individual had the right status of mind and that his actions were not because of certain disabilities. Punishment passed on crimes would be unjust if it cannot be ascertained why a criminal had to do the acts. Works Cited Read More